2015 | Council of Europe, Commissioner for Human Rights Report Democratic and Effective Oversight of National Security Services

States have installed security services to contribute to the protection of the populations they serve. These services must, in turn, respect the rule of law and human rights in undertaking this task. Revelations by Edward Snowden (2013) have, however, brought to light that some security services are involved in serious human rights violations. Adequate oversight of security services is therefore fundamental. Allegations about unlawful security service activity in various Council of Europe member states have cast doubt on the capacity of national oversight systems to perform this role. Against this background, this paper by the Human Rights Commissioner of the Council of Europe addresses the question what is required to make national oversight systems more effective in helping to promote human rights compliance and accountability in the work of security services.

Security services activities such as information sharing with foreign states’ security and intelligence services and untargeted, bulk surveillance of electronic communications can have a wide range of unlawful implications. For example, involvement in the rendition and/or secret detention of terrorist suspects, and in drone strikes, may infringe the right to life, the right to personal liberty and security, and the right not to be subjected to torture or inhuman, cruel and degrading treatment. It has been widely alleged that European security services have been complicit in the violation of human rights in the context of US-led counter terrorism activities by sharing information with US intelligence services that may have been used in identifying and locating persons for extrajudicial killings. In this context, brief consideration is also given to the right to a fair trial in relation to legal proceedings involving security services.

The report analyses various types of oversight institutions of European states that are responsible for authorising, monitoring, scrutinising and reviewing security service activities. These bodies vary, from parliamentary committees, (quasi) judicial bodies, ombudsman institutions to expert security and intelligence oversight bodies. The report concludes that effective oversight is generally hampered by multiple causes including the fact that not all oversight bodies have (full) access to information about their own security service’s activities, and the fact that they are not empowered to issue binding orders, are two. As a consequence, and contrary to what is required by the European Convention on Human Rights, those persons whose human rights are violated by security service activities lack an effective remedy. Consequently, the report stresses the need for parallel or subsequent access to a mechanism equipped to make legally binding orders. Against this background, inter alia the role of judicial bodies in adjudicating on complaints arising from (alleged) security service activity is highlighted. However, although most Council of Europe states in theory offer the possibility of an individual bringing an action and seeking a remedy, the report advances that there are often significant obstacles to litigating against security services. Using the courts to challenge security service surveillance or data-use is even more complex because, in most cases, an individual will not be informed about such infringements of their rights.

In order to strengthen the oversight of national security services and thereby improving human rights compliance in the work of security services, the Commissioner recommends that member states should:

Mandate oversight bodies to scrutinise the human rights compliance of security service co-operation with foreign bodies, including co-operation in joint operations or through the exchange of information;

Guarantee that all bodies responsible for overseeing security services have access to all information;

Create or designate an external oversight body to receive and investigate complaints relating to all aspects of security service activity. Where such bodies are only empowered to issue non-binding recommendations, member states must ensure that complainants also have recourse to another institution that can provide remedies that are effective both in law and in practice.